Need for an effective mechanism

As highlighted by the Ministry in its press release dated November 3, 2023, the film and entertainment industry suffers losses amounting to over Rs. 20,000 crore every year on account of piracy. Due to the lack of an institutional mechanism, copyright owners are compelled to seek remedies against copyright infringement and piracy by instituting legal proceedings, which are undoubtedly time-consuming. 

Moreover, the grant of injunctions has proved futile over time, considering the tendency of infringing websites to resurface as redirect, alphanumeric or mirror websites. As a remedy against the infringement of copyright by such hydra-headed rogue websites, the Delhi High Court introduced dynamic injunctions for the first time in April 2019.[1] Going a step further, the Delhi High Court issued a “dynamic+ injunction” in August 2023, restraining the defendant websites and their redirect, alphanumeric or mirror websites from streaming not only the present works of the plaintiff studios but also their future works.[2] The same was considered necessary considering the possibility that the films and series could get uploaded on rogue websites immediately after their release.

These measures cannot do away with the need for a framework to promptly address the proliferation of pirated content, especially considering the extent of losses faced by the industry.

Prohibition of pirated films’ exhibition under the 2023 amendment

The Cinematograph (Amendment) Act, 2023 (the “Act”), which received the President’s assent on August 4, 2023, provides for the inclusion of Section 6AB. The said Section prohibits public exhibition of infringing copies of films for profit if such exhibition is either done at a place of exhibition not licensed under the 1952 Act or rules made thereunder or is made in a manner that amounts to copyright infringement under the Copyright Act, 1957, or any other law for the time being in force.

Any contravention of the above-mentioned provision will not only result in the imposition of a fine (ranging from Rs. 3 lakhs to 5% of the audited gross production cost) but also in imprisonment for 3 months, which could be extended to 3 years. This is in accordance with Section 7(1A) of the Act.

Additionally, Section 7(1B)(ii), as introduced under the 2023 amendment, specifies that the Government or its agencies can take suitable action against an intermediary for acting in the manner described under Section 79(3) of the Information Technology Act, 2000, or any other law for the time being in force. Section 79(3) of the IT Act states that an intermediary can be held liable if, despite being notified by the Government or its agency, the intermediary fails to remove or disable access to material, including information, data, or communication links, that is used by third parties to commit unlawful acts and is made available or hosted by such intermediary.

However, it is necessary to note that these amendments have not been brought into effect by the Government yet.

Appointment of nodal officers

To ensure adequate redressal of grievances pertaining to the circulation of pirated content, nodal officers have been appointed in the offices of the Ministry of Information and Broadcasting and the Central Board of Film Certification (CBFC). A total of 12 nodal officers have been appointed, out of which 9 are CBFC’s regional officers.

As per the new mechanism, a complaint can be filed by an original copyright holder or a person authorised by such holder, with the nodal officers. The Ministry’s notification provides the format in which the complaint has to be filed. On receipt of a complaint, the nodal officers are authorised to direct the intermediaries (including internet service providers, online marketplaces, search engines, etc.) to take down the pirated content from the digital platforms. After being directed to do so, the intermediaries would be required to comply with the same within 48 hours.

The format for notifying the intermediary to remove or disable access to the content has been annexed to the office order dated November 3, 2023, issued by the Ministry. This order states that the nodal officers have been nominated “for the purpose of issuing notification(s) to the intermediaries in respect to unlawful information as per clause (ii) of sub-section (1B) of section 7 of the Cinematograph Act, 1952”.

Analysis

This proactive initiative by the Ministry of Information and Broadcasting has received widespread appreciation not only from the film industry but also from everyone who is affected directly or indirectly. It is imperative to note that film piracy not only impacts the economic aspect of the industry but also discourages innovation and hampers the growth of the entertainment sector.

The concerted efforts of nodal officers, in collaboration with industry stakeholders and law enforcement, are expected to serve as a deterrent and contribute to the creation of a more secure and sustainable ecosystem for filmmakers and content creators.

While this may not help to combat piracy entirely as the content over streaming services are out of the purview of the Cinematographic Act, nevertheless, this is a terrific move to get the pirated content off the internet with less effort and on a timely manner to have a lesser impact on the business of original cinematographic content.